Civil libertarians can be so smug. I should know. I am one. Or, I have professed to be one until now. Proudly, as it happens. Haughtily even. "I'm with the good guys," I told myself. "Not the theocrats. Not the anarchists. Just the right on, straight shooting, Bill of Rights toting crowd."
Not anymore. Now it seems I'm with the sticklers, the devils who revel in the details, the litigious brake-slammers every American is learning to hate. That is to say, I'm still a civil libertarian, but I'm not always so proud of it anymore. And, if we're honest with ourselves, none of us should be.
The reason is very simple. Freedom begets evil.
They didn't tell you that one in civics class, did they? It's not exactly the sentiment you feel when you're standing on the field of dreams, or in the bleachers -- as so many (including President Bush and Mayor Giuliani) were Tuesday night at Game 3 of the World Series -- listening with rapt joy to the chorus of "God Bless America" being sung by one of New York's finest on behalf of New York's bravest. It's not the visceral charge that stiffens the proverbial hairs on your neck, or the throat-lumping gratitude that jerks a few unwitting tears from your peepers. Nope. In fact, the flip side of freedom, or as Henry James might have put it, the figure buried in freedom's carpet, never even occurs to you at times like this. Probably never at all. It certainly didn't to me.
That is, until things got critical in the last two months. Now the question of civil liberties has run smack up against that other vexing national concern, public safety, in very much the same way that it did during World War II with Japanese-Americans, and during the red scare, with communist Americans. But this time we're determined to have learned our lesson.
We're not going to turn into a police state overnight just because there may actually be terrorists lurking under any bed. We're not going to haul people off the streets never to be seen again. We're not going to shirk due process in the name of operation expeditious justice, just so that we can keep our paranoid hands on more than a thousand of those supposed material witnesses and immigration violators we've rounded up (but still haven't been able to finger) since Sept. 11. We're not going to pass an anti-terrorism bill that allows the government to do practically everything from analyze our excrement to voyeurize our epistolary romances via the lovely euphemistic "emailer daemon."
But, of course, we already have. And noted civil libertarians like Nat Hentoff have been right to object.
But, in times like these, it isn't quite that easy -- which, indeed, is what brings us back to the question of how it's possible for a patriot like me (yes, I'm not afraid to admit it) to say, in all honesty, that while lady liberty might have a nice Roman nose, she's also got a little pointed tail concealed beneath her cloak.
As any of you who took Philosophy 101 will remember all too well, there is a famous "problem" that thinkers throughout the ages have sought to solve rhetorically, if not practically: The problem of evil. You'll also remember that it presents the inquiring mind with the seeming paradox that if God is omnipotent as well as benevolent, how can he allow evil to exist in the world?
Now, you can see, I expect, why this question may be cropping up in the agora these days, especially since the terrorists, with whom we are presently confronted, claim to be doing the will of God when they murder people. Now the most common solution to this problem offers free will as the explanation for why and how evil could persist in a benign creation. God gave us free will, and sometimes we choose to do evil instead of good. And this, alas, makes freedom and evil into bedfellows. Free will is what makes for evil in the cosmic sense, but, as it turns out, it's also what makes for evil in free societies.
We've heard it said often lately that our free and open society made it easier for the terrorists to strike. Had we lived in a more oppressive and suspicious state, we might well have caught the perpetrators before they struck. So, it's thought, if we can clamp down now in certain ways -- i.e. making wiretappings, and searches and seizures easier for the FBI to carry out -- we'll be more likely to catch them next time. This is true. But the converse is also true. The freer and more open we make our society, or the more of these so-called reforms we civil libertarians insist on blocking, the easier we will keep making it for evildoers to slip through the cracks -- the very cracks we have made and deepened in the name of freedom.
In other words, when we push for the protection of civil liberties, we must admit that we are accepting the considerably greater risks to public safety that protecting those freedoms entails. The government cannot protect our civil liberties sufficiently, and still keep us hermetically safe from this new terrorist threat. It can't be done. Either freedom or safety will have to give.
So when we choose freedom at all costs, we are not just waving the flag of human rights in the name of the Constitution. We are thereby also putting our fellow citizens (innocent ones) under the gun. There is no escaping this conclusion. The two go hand in hand, and if we are to be responsible activists, we must -- unlike so many of the numbskull pacifists who've cropped up lately -- acknowledge the ramifications of our position. Protecting freedom can sometimes mean fostering evil, making room for it to breed and move freely among the unsuspecting, and we cannot shirk the blame for the ugly results that often follow.
So, for example, if, as a strict libertarian, I were to oppose the use of racial profiling on planes in the name of equal protection under the law, my ethical journey wouldn't end there. I would, at the same time, have to be willing to take partial responsibility for the consequences of that position. If, to take a common occurrence these days, I lobby to disallow flight attendants the discretionary privilege of removing suspicious looking Middle-Eastern men from flights, and those men turn out to be hijackers, I will be in part responsible for the deaths of every passenger on those planes and every victim on the ground. If I am not prepared to accept this responsibility, then I have no business taking my stand.
Similar arguments have been made lately, and I think rightly, about those same myopic pacifists. It's all well and good to be against killing, but when you refuse on principle to intervene in a conflict, the winning of which will save innocent lives, you must also accept responsibility for the loss of those innocent lives when they inevitably occur. Sins of omission count. You cannot hold your principles in a vacuum.
So, in this war on terror at home, as we civil libertarians stalk the government for curtailing our rights, we must also admit that we are doing so on behalf of prospective terrorists as well, and that by doing so, we are making it more likely that said terrorists will elude the authorities and kill again. When they do, we will be, in a certain sense, answerable to the widows and orphans of the newest victims. I wonder, will our principles comfort us then? If we are honest with ourselves, in the wake of another such disaster, will we feel so pure and perfect about our unwavering position on the Fourth and the 14th Amendments? Or will we be forced to acknowledge that taking a stand for freedom can be a dicey business when you live in a world where some people don't play by the rules.
Absolutes are easy in peacetime. Civil liberties aren't a hard call when it's only Dr. Laura and the Boy Scouts on the line, or when it's campus speech vs. political correctness. But what about when the stakes are higher? Then what?
I remain a civil libertarian, because in the end I don't think favorable ends justify illiberal means. But, these days, I do so imperfectly and with a heavy heart. I don't like the idea that right now, over a thousand prisoners in this country don't have legal counsel because their lawyers don't know where they are. I oppose this. But under the circumstances I do not oppose other practices, like the racial profiling of Arab men. Not to profile them, given the information we have about who our attackers are, would simply put too many people's lives in the balance. And for what? The presumption of innocence? At present that's not a tradeoff I can live with.